Litigation failings lead to expenses award against solicitor
A solicitor has been found personally liable in expenses for part of a litigation, for failing to ensure that an expert witness instructed was given all the relevant and necessary documents – even when the expert pointed this out.
Lord Boyd of Duncansby in the Court of Session made the order against Glasgow solicitor William Renfrew, who acted for one of three defenders in a family dispute in which the pursuers sought reduction of a disposition of a flat in Glasgow, on the ground of incapacity of both grantors. Mr Renfrew's client withdrew her defences on the eve of proof and decree was granted after the diet was discharged.
The pursuer sought to have Mr Renfrew found jointly and severally liable for the expenses of the action, taxed on an agent-client, client paying basis, but Lord Boyd made a more restricted order.
He observed it was clear that a solicitor should be open to an adverse finding if responsible for expenses caused by fault for which the client did not bear any blame. Instructing the raising or raising an action which was clearly unfounded, or using procedure not to establish a right but to delay the enforcement of an undeniable right fell within that category. There was also a duty to see that the legal aid fund was not unnecessarily diminished.
On the other hand, as a general principle a solicitor acting on the instructions of counsel should not be found personally liable in expenses. The pursuers had a strong prima facie case but it was not conclusive. Presenting a defence which might be pretty hopeless but was statable did not constitute an abuse of process. However, failing to respond to reasonable requests from other parties over a lengthy period was unacceptable. Similarly, failure to explain an obvious discrepancy in evidence regarding an important factual matter and a leisurely approach to the conduct of litigation were unacceptable, as was taking inadequate precognitions to address obvious points.
None of these matters in themselves was sufficient to establish fault on the part of the solicitor. However, fault was established in the failure to instruct an expert properly and ensure they had all the relevant and necessary documentation. This was compounded by failure to read the subsequent report, which would have disclosed the lack of documentation. In all the circumstances Lord Boyd found the solicitor personally liable in expenses for a restricted period, but that an enhanced basis for taxation was not justified.